This morning we heard Cary Boggan, chairperson of the A.B.A. Section of Individual Rights and Responsibilities, discuss the right to privacy as a matter of substantive constitutional law. Again this afternoon, Professor David Richards spoke about the right to privacy as a matter of substantive law. I too will speak about constitutional law, but from a different perspective.

I will focus on some practical aspects involving constitutional litigations strategy and procedure. I would like to do this by analyzing the way in which two important sodomy cases have been handled within the past few years. Each of those cases involved an attempt to have the federal courts recognize the principle that private sexual conduct between consenting adults is constitutionally protected. Although each case was handled differently, each ultimately was rejected by the United States Supreme Court. These cases had the same objective-a recognition of constitutional right to privacy for consenting adult behavior. The different procedural tactics and strategy used in these cases, however, is worthy of our closest attention and analysis.

In the first case, Buchanan v. State, the defendant was prosecuted under the Texas sodomy law. Rather than exhausting his remedies in the state courts by facing trial and then appealing to the state court of appeals after conviction, the defense filed a lawsuit in federal district court. The federal court was requested to issue an injunction against the pending state prosecution and to declare the Texas sodomy law unconstitutional. The then Texas sodomy law prohibited all forms of sodomy, even if the sexual acts were performed in private between consenting adults. The law also prohibited both homosexual and heterosexual sodomy even if performed between husband and wife. Consequently, Mr. Buchanan was not the sole plaintiff in his federal lawsuit. Others were granted permission to intervene as plaintiffs. These intervenors included a heterosexual married couple, a heterosexual unmarried couple, and a homosexual couple. These couples claimed that this law infringed on their right to privacy and they too requested injunctive and declaratory relief. In this case, Buchanan v. Batchelor, a three-judge district court declared the Texas sodomy law unconstitutional and granted the requested injunctive relief. The State of Texas then took a direct appeal to the United States Supreme Court in Wade v. Buchanan. The Supreme Court vacated the judgment and remanded the case to the district court, with directions to reconsider its injunction against this pending state prosecution in light of a recent pronouncement by the Supreme Court regarding federal abstention, in Younger v. Harris. The Younger case basically held that, except in the rarest of circumstances, the federal courts should not interfere with pending state prosecutions. The defendant must first exhaust his state remedies of trial and appeal before seeking federal relief. Accordingly, the injunction was lifted, the state prosecution resulted in a conviction, and the Texas Court of Criminal Appeals affirmed the conviction. The defendant petitioned the United States Supreme Court for a writ of certiorari, and on February 22, 1972, the petition was denied.